An initiative at the National Law School, Bangalore to provide a platform for discussing, debating, analysing and critiquing legal developments of contemporary importance

Friday, July 15, 2011

SC orders in the Salwa Judum Case

We discussed the recent directions issued by the Supreme Court in the Salwa Judum case (Nandini Sundar and ors. v. State of Chhattisgarh) and the following broad issues:

1. Is the reasoning of the Court as far as Articles 14 and 21 are concerned unnecessarily convoluted? The reasoning of the court, in the case of Article 14 seems to be that the SPOs, appointed under the Chhattisgarh Police Act, 2007 (read with May 2011 rules) seem to be facing risks incommensurate with the skills training that they receive. Their service conditions are inadequate, again, for those purpotedly involved in a counter-insurgency operation. The second part of the Article 14 reasoning pertains to the fact that given that many of the appointments are of tribal youth, some of whom have had only limited schooling. This does not allow them to exercise proper judgment, given the particular conditions that they are facing. Q: Could this case have been wrapped up just by noting the lacunae of rules at the time of appointment?

The manner in which 'dignity', particularly, has been discussed in the context of Articles 14 and 21 seems to be a novel approach adopted by the Supreme Court. The order discusses this in the context of the Directive Principles (equitable distribution and sustainable development, among others) were "principles fundamental to the governance of the state'. Previously, it has been noted by the SC in the context of Article 21 (life as being more than mere animal existence).

2. Why was the implication of the Central Government in these orders important? The Central Government had submitted that beyond specifying the maximum number of SPOs who could be appointed and from supplying the funds required for the honararium, the Central Government pleaded ignorance of the situation. We discussed how historically the role of the Ministry of Home Affairs is deeply involved in the "management" of internal conflict, particularly on Naxalite violence. There is blatant disbelief expressed at the Government's affidavits in the order. Q: Apart from more obvious reasons why there is this disbelief, is the involvement of the Central Government important from the compensation for the SPOs affected by Naxalite violence (that the petitioners had asked for?)

3. Does this case demonstrate the limitations of the PIL model? The order is particularly concerned about the security of the SPOs who would be disarmed, and asks the very Government which was complicit in these unconstitutional appointments to ensure their safety.

4. The original petition (250/2007) had asked to stop the appointments of SPOs who were minors. Apart from the reference to tribal "youths" or "youngsters", the Court does not look at the impact of minority in any detail. Perhaps it is assumed. In one part of the order, the Court discusses how the "informed consent" of those who had received such limited training / skills could not be presumed, even if they were not above the age of eighteen.

Note that the decision has not completely negated the use of SPOs in Chhattisgarh, but has only restricted their deployment in case of natural / manmade disasters where relief work is necessary or to regulate traffic. Essentially the idea seems to place them in non-combatant positions.

We also discussed the use of SPOs in other states - particularly, Karnataka and Kashmir, and what the manner of regulation was in these instances. It appears that the SC's interpretation also takes cognisance of the peculiar nature of the Chhattisgarh situation, without buying into the argument by the Government that it was an exceptional situation which demanded "extraordinary" measures.

5. Were all the reliefs that were asked for addressed in the order? Notably, the case does not address the question of compensation even though a rehabilitation scheme has been proposed by the petitioners during the course of litigation. Further, the evacuation of the schools and hospitals is still being monitored. The CBI has also been directed by the Court to look into the burning of villages.

6. What were the consequences of the order? We briefly looked into how the disarming of SPOs was immediately carried out, but that there were some disquieting responses in and around the villages. The order specifically noted how the Court had ordered that the security of the SPos be ensured. Perhaps the disarming was immediate, proof of the SC's growing legitimacy as a public institution. In this context, we also discussed the not-so-immediate responses in the Right to Food cases or the deletrious effects of some of the orders from the Forest Bench.

7. Should the first few pages of the order (discussing constitutional visions and the ill effects of globalisation etc.) be ignored? Some expressed the idea that these might be necessary to convince the presiding judges of the gravity of the situations. Others shared experiences where the observations in a case (as opposed to the ratio of the case) had been cited before other benches in order to get a favourable order! While rhetoric in and of itself would not be useful without a legally reasoned order, it does play an important supplemental role. We also noted how cases such as Olga Tellis are cited and used to press constitutional arguments on say, dignity of

citizens, although the final order in the case was not favourable to the petitioner. Another example in this regard seems to be Menaka Gandhi.

There was also a brief discussion on the role of the Supreme court and judicial overreach and why citizens approach the appellate courts rather than use avenues open to approach the legislature. We also discussed a few initiatives where this scenario appears to be changing.